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Disability Discrimination: Prisoners

     Monthly Law Journal Article: Accommodation of Wheelchair-Bound Prisoners, 2009 (10) AELE Mo. L. J. 301.
     Monthly Law Journal Article: Prisoners with HIV/AIDS. Part 2, 2014 (3) AELE Mo. L. J. 301.

     A prisoner started experiencing blackouts, weakness and difficulty walking. Despite his written medical requests, he asserts, he was not properly examined for six months. Before he was eventually diagnosed with pernicious anemia, the defendants allegedly failed to use medication to slow the disease. He was paralyzed from the waist down and his condition continued to deteriorate. He complained that he was denied assignment to the Transitional Care Unit, and that he was placed in administrative segregation without a wheelchair or handicap access, forcing him to crawl and to eat meals on the floor. He was also denied someone to push his wheelchair, a handicapped-accessible cell, medically prescribed physical therapy, preventative treatment, examination by an outside specialist, wheelchair accessories, and exemption from activities requiring exposure to cold. He claimed that lack of accommodations caused him to miss meals, fall several times in his cell, be placed on strip-cell status, and be unable to move around his cell without hitting the toilet or walls.
     Individual capacity disability discrimination claims against two prison officials were dismissed because they could not be sued in their individual capacities under either the Americans with Disabilities Act or the Rehabilitation Act. Claims against doctors and a correctional medical service, as they related to medical treatment, could not form the basis of disability discrimination claims under either statute. Claims for injunctive relief, however, could continue, as could damage claims against the state and the correctional department, as some of the alleged conduct could have violated the Eighth and Fourteenth Amendments. Dinkins v. Correctional Medical Services, #12-2127, 2014 U.S. App. Lexis 3454 (8th Cir.).

     The daughters of a deceased prisoner appealed summary judgment granted to jail officers who allegedly refused to provide him with batteries for his hearing aids, rendering them useless, and preventing him from hearing. They claimed that this constituted deliberate indifference to his serious medical needs and a violation of the Americans with Disabilities Act (ADA). The appeals court ruled that the officers did not have fair warning that their alleged actions were unlawful, entitling them to qualified immunity. Gilmore. v. Hodges, #11-12674, 2013 U.S. App. Lexis 25326 (11th Cir.).
    A former Arizona state prisoner with a disability stemming from a prior ankle injury claimed that a private company for which he picked tomatoes as part of a convict labor force failed to reasonably accommodate his disability. The lawsuit was properly dismissed, as the relationship was not one of employment for purposes of federal disability discrimination statutes. Additionally, the defendant company did not receive federal funds. Summary judgment for state defendants was improperly granted, however, as they could be liable for any disability discrimination committed by the contractor. Castle v. Eurofresh, Inc., #11-17947, 2013 U.S. App. Lexis 19521 (9th Cir.).
     Disabled California state prisoners and parolees sued the state seeking an injunction requiring more accommodations of various disabilities. The trial court issued a series of orders requiring the state to implement a previously negotiated County Jail Plan for disabled prisoners and parolees. A federal appeals court rejected the state's argument that these orders conflicted with recent amendments to the state penal code designed to alleviate overcrowding in state prisons or required more of the defendants than was needed to assist in remedying disability discrimination violations for which they had responsibilities. Armstrong v. Brown, #12-16018, 2013 U.S. App. Lexis 20323 (9th Cir.).
     A settlement of a lawsuit ending the segregation of HIV-positive prisoners in Alabama correctional facilities has been approved by a federal trial court. Female prisoners who are HIV-positive are now integrated into the general prison population and the same will be true of male positive prisoners in 2014. $1.3 million in legal fees and costs was also awarded to be paid by the state. The prior segregation policy was found to violate federal disability discrimination statutes. The ruling leaves South Carolina as the only state still segregating HIV positive prisoners. Henderson v. Thomas, #2:11cv224, 2013 U.S. Dist. Lexis 140098 (M.D. Ala.).
     A paraplegic prisoner confined to a wheelchair sued, asserting claims for 14 alleged incidents of excessive force against him, denial of needed medical treatment, and the confiscation of his wheelchair, which was then replaced with one that lacked needed leg rests. He claimed that, with the supplied wheelchair, he was unable to shower or brush his teeth and sometimes was left lying in his own excrement for day. A federal appeals court upheld the dismissal of most of these claims for failure to exhaust administrative remedies by filing and pursuing grievances, as required by the Prison Litigation Reform Act. The trial judge was entitled to make a factual determination without the participation of a jury that the plaintiff was aware of the prison's grievance procedure and was able to access it. The appeals court found, however, that the prisoner did adequately exhaust administrative remedies as to two specific incidents. While he did not appeal his grievances concerning those two incidents, no appeal was available because no actual decision on the grievances concerning those incidents was received.
Small v. Whittick, #11-2378, 2013 U.S. App. Lexis 17739 (3rd Cir.).
     A wheelchair-bound inmate may not be able to pursue an Americans with Disabilities Act (ADA) disability discrimination claim over a denial of outdoor recreation for seven weeks on the basis that not enough disabled prisoners (at least nine) requested it, since state officials may be immune from liability under the ADA. His claims did, however, state a viable claim under the Rehabilitation Act, since the prison was a recipient of federal funding, and outdoor recreation constituted a "program or activity" under the Act, which he could not be denied participation in on the basis of disability. Norfleet v. Walker, #11-2137, 684 F.3d 688 (7th Cir. 2012).
     An Illinois prisoner with hip problems, including necrosis, asserted viable disability discrimination claims under the Americans with Disabilities Act and the Rehabilitation Act based on his alleged disqualification from a work-release program (because he walked with a cane) and the lack of grab bars in the prison, which he claimed made it difficult for him to use the toilet and shower, to attend meals, or to work in the prison library on the same basis as other prisoners. While these problems did not violate the Eighth Amendment since he did manage to do many of these things, even if with difficulty, the failure to reasonably accommodate his disability could be unlawful discrimination. Limiting him to weekly showers was not an Eighth Amendment violation. Jaros v. Illinois Department of Corrections, #11-2567, 684 F.3d 667 (7th Cir. 2012).
     A prisoner serving a one year sentence was denied a course of treatment for Hepatitis C because his sentence was not long enough to provide for proper evaluation and treatment. When he was convicted again and returned to prison, he was denied treatment again based on his past drug abuse under a requirement that he successfully complete a substance abuse program first. His assertion that the true reason he was denied treatment was financial stated a possible Eighth Amendment claim. He could also proceed with his disability discrimination claim on the basis that his drug addiction could be regarded as a disability. The trial court's conclusion that a defendant doctor was entitled to qualified immunity was improperly conclusory. Hilton v. Wright, #10–135, 2012 U.S. App. Lexis 5012 (2nd Cir.).
     Prisoner failed to prove that he was disabled in terms of his conditions of Hepatitis C, back pain, and psychiatric conditions affecting his ability to perform major life activities. He therefore could not continue to pursue his claim that he was barred from participation in prison work and education programs on the basis of disability discrimination. Hale v. King, #07-60997, 642 F.3d 492 (5th Cir. 2011)
     The existence of a consent decree containing a remedial plan for alleged disability discrimination against Colorado prisoners did not bar individual prisoners from pursuing damage claims for violations related to their covered disabilities, or from appealing the denial of their damage claims. The consent decree itself established a mechanism for individual prisoners to assert claims for damages. In this case, the individual prisoner failed to show that he suffered from a covered disability. Montez v. Hickenlooper, #08-1399, 2011 U.S. App. Lexis 9543 (10th Cir.)
     Title II of the Americans with Disabilities Act (ADA), 42 U.S.C. Secs. 12131-12165, a federal appeals court ruled, does not validly abrogate state sovereign immunity in a lawsuit brought by disabled inmates who claimed that they were denied access to prison educational and work programs on the basis of their disabilities. The lawsuit was filed against Mississippi state prison officials in their official capacities. The court reasoned that in authorizing such claims, Congress exceeded its authority to the extent that they are not “congruent and proportional” to the enforcement of the Equal Protection Clause of the 14th Amendment. The parties in the case agreed that none of the defendants' conduct arguably violated the Fourteenth Amendment. Hale v. King,  #07-60997, 2010 U.S. App. Lexis 21463 (5th Cir.).
     A prisoner suffering from bipolar disorder hung himself to death in his cell in a Texas prison. His mother sued, claiming that prison authorities had been deliberately indifferent to her son's condition, in violation of the Eighth Amendment. She also asserted a disability discrimination claim under the Americans with Disabilities Act (ADA). She argued that he had been denied treatment for his condition, that he was denied medication or it was confiscated, causing manic episodes, and that he was sometimes denied Lamictal, fish oil supplements, and vitamin E, which had been effective in treating his bipolar disorder, and instead provided with ineffective medications with extreme side effects. She also contended that prison employees missed clear signs that his mental health was deteriorating and that he was a suicide risk.At the time of his death, he was being housed in isolation, which was allegedly a violation of the standards issued by National Commission on Correctional Health Care ("NCCHC"), which direct that suicidal prisoners not be housed in isolation, unless under constant supervision. He was allegedly not closely monitored, and his mother argued that log entries showing the contrary had been fabricated. The federal appeals court upheld a determination that the lawsuit's federal civil rights clams against the state Department of Criminal Justice and prison officials in their official capacity were barred by sovereign immunity, while all other federal civil rights and ADA claims were time-barred as they involved conduct that had occurred over two years ago. Brockman v. Tex. Dept. of Criminal Justice, #09-40940, 2010 U.S. App. Lexis 20349 (Unpub. 6th Cir.).
     California state officials with authority over the corrections system and parole proceedings were properly ordered to track and accommodate the needs of state prisoners and parolees housed in county jails who had disabilities in order to see that their disabilities were properly accommodated as required by federal disability discrimination statutes. The trial court satisfactorily made findings required under the Prison Litigation Reform Act concerning the need for relief for the problems claimed in a class action lawsuit brought on behalf of disabled prisoners. The appeals court rejected arguments by the state officials that they had no responsibilities for ensuring that state prisoners or parolees in county jails receive reasonable accommodation for their disabilities, pointing to regulations, 28 C.F.R. § 35.130(b)(1), that specify that an entity cannot avoid its obligations regarding the accommodation of disabilities by operating "through contractual, licensing, or other arrangements” with third parties. Armstrong v. Schwarzenegger, #09-17144, 2010 U.S. App. Lexis 18687 (9th Cir.).
     A Pennsylvania prisoner filed two lawsuits against a prison medical director. When a deposition was scheduled in the case, due to disabilities that the prisoner suffered (diabetes and phlebitis), he requested that another prisoner be present to assist him in taking notes. The attorney for the medical director, however, refused to be in a room with two inmates present, and therefore ended the deposition early. The court rejected a claim that the Department of Corrections had violated the plaintiff inmate's rights under the Americans with Disabilities Act (ADA), since it had been willing to supply him with the requested inmate assistant, and it was only the attorney's objections that ended the deposition. The inmate could not assert ADA claims against the attorney or medical director, as the ADA does not apply to individuals. Watson v. Pa. Dept. of Corrections, #1475 C.D. 2009, 2010 Pa. Commw. Lexis 113.
     A Florida prisoner in a prison operated by a private prison management company under contract sued three employees of the company in their official capacities, seeking injunctive relief and damages for disability discrimination under Title II of the Americans with Disabilities Act (ADA), 42 U.S.C. Sec. 12132, which prohibits a "public entity" from discriminating against qualified persons because of their disabilities. Upholding summary judgment for the defendants, a federal appeals court held that the private corporation was not a public entity merely on the basis that it entered into a contract with a public entity to provide services. An "instrumentality of the state" is a government unit or a unit created by a government unit. Edison v. Douberly, #08-15819, 2010 U.S. App. Lexis 8961 (11th Cir.).
     Upholding a trial court's appointment of a receiver in a class action lawsuit claiming widespread deficiencies in prison medical care, in violation of the Eighth Amendment and the Americans with Disabilities Act (ADA), a federal appeals court ruled that the Prison Litigation Reform Act did not eliminate the trial court's jurisdiction to appoint a receiver in prison conditions litigation, and that, in this case, the trial court properly found that the appointment of such a receiver was the "least intrusive means" of remedying the problem. Plata v. Schwarzenegger, #09-15864, 2010 U.S. App. Lexis 8969 (9th Cir.).
     A prisoner suffering from deteriorating eyesight claimed that a prison nurse failed to protect him against being more likely to be preyed on by other prisoners, including because of his inability to see to use his combination locks, leaving his property unprotected as a result. The court found that the nurse's denial of his request for a single room was based on her understanding of prison policies, rather than deliberate indifference to his serious medical needs. The prisoner could go forward, however, with his equal protection and disability discrimination claims, based on his assertion that he was not provided with equal treatment to other disabled inmates, and the nurse's failure to point to facts rationally supporting her decision to deny him a single room. Mingus v. Butler, #08-2286, 2010 U.S. App. Lexis 78 (6th Cir.).
     A prisoner claimed that he was subjected to disability discrimination because he was not provided with reasonable accommodations, including a cane. His claim was rejected, however, as he failed to show that he had a disability within the meaning of applicable federal statutes. Ali v. Howard, #09-1654, 2009 U.S. App. Lexis 25162 (Unpub. 3rd Cir.).
     Wheelchair-dependant inmates claimed that conditions at a facility resulted in them soiling themselves several times a week because the restrooms available were not wheelchair accessible. The frequency with which this occurred was frequent enough that an Eighth Amendment claim survived summary judgment. Other claims concerning the height of a food service counter, the absence of an accessible water fountain, potholes and broken cement in recreation yards, and the alleged inaccessibility of telephones and the law library, however, did not assert valid Eighth Amendment claims as they did not deprive the prisoners of the "minimal civilized measure of life's necessities" or present an unreasonable risk of serious damage to their health. In the absence of a showing of discriminatory intent, the prisoners could not recover damages under the Americans with Disabilities Act (ADA). Shariff v. Coombe, #96-Civ-3001, 2009 U.S. Dist. Lexis 69119 (S.D.N.Y.).
      A prisoner's claim that he was denied a reasonable accommodation for his hearing loss in violation of his rights under the Americans with Disabilities Act (ADA), 42 U.S.C. § 12101 et seq., was properly dismissed since the evidence of objective hearing tests indicated that the prisoner was faking a hearing loss and actually needed no accommodation. Smith v. Masterson, #08-2832, 2009 U.S. App. Lexis 25042 (Unpub. 2nd Cir.).
     California state prisoners sought an order requiring state correctional officials and other state officials to track and accommodate the needs of class action members with disabilities housed in county jails. The court granted the order. State responsibilities under federal disability discrimination statutes to provide access to facilities and programs could not be avoided by entering into contracts with county jails to house state prisoners. Armstrong v. Schwarzenegger, #C 94-2307, 2009 U.S. Dist. Lexis 91494 (N.D. Cal.).
     A prisoner who suffered from a blood clot in his left eye failed to assert a viable disability discrimination claim since the record showed that he was provided with meaningful access to prison programs and facilities. The prisoner also failed to show that the manager of a prison housing unit acted with deliberate indifference to his serious medical needs. Indeed, there was no admissible evidence even showing that the defendant was aware of his blood clot. Mason v. Correctional Medical Services, Inc., #.07-2814, 2009 U.S. App. Lexis 6068 (8th Cir.).
    The "continuing violation" doctrine applies to Eighth Amendment claims of medical indifference brought under 42 U.S.C. Sec. 1983 when a prisoner shows an ongoing policy of deliberate indifference to his or her serious medical needs and "some acts in furtherance of the policy within the relevant statute of limitations period."  Further proceedings were required to consider whether that doctrine also applied to the prisoner's federal disability discrimination claims. The case involves a prisoner suffering from right arm paralysis and limited use of his left arm. He claimed that, despite recommendations from a number of doctors, he was not provided with assistance with "activities of daily living, transferred to specialized infirmary housing, or provided with needed treatments." Shomo v. City of New York, #07-1208, 2009 U.S. App. Lexis 18001 (2nd Cir.).
     A prisoner failed to show that he had been subjected to disability discrimination and violations of his First, Eighth, and Fourteenth Amendment rights because he has AIDS. While he claimed that his family was denied a contact visit because of his medical condition, that "disparaging" remarks were made about his condition, and that he was otherwise subjected to prejudice, discrimination, and retaliation, he failed to allege sufficient specifics, as opposed to "theories and conclusions" to enable a court to find actionable discrimination. Lopez v. Beard, #08-3699, 2009 U.S. App. Lexis 13403 (Unpub. 3rd Cir.).
     Proof that an inmate had a "raspy" voice was insufficient to show that he had a disability for purposes of a disability discrimination claim. While his "raspy" voice could impact the volume of his speech, there was no indication that he was unable to articulate his words, to communicate with others, or to make himself understood. The court also rejected his claim that prison employees were deliberately indifferent to his serious medical needs. The defendants attempted to accommodate his need to avoid environmental tobacco smoke (ETS), and the prisoner failed to show any intentional refusal to address the issue. Pritchett v. Ellers, #08-1669, 2009 U.S. App. Lexis 9381 (Unpub. 3rd Cir.).
     A prisoner's allegation that correctional officials knowingly refused to provide treatment or to investigate his request for treatment, specifically ophthalmic evaluation and cataract surgery, failed to establish a claim for disability discrimination. His argument that an allegedly resulting disability was the loss of vision in his right eye did not show that the defendants denied him care on the basis of a disability. The prisoner also failed to show that the defendants acted with deliberate indifference to his serious medical needs, or that they acted merely in order to save the cost of treatment, as opposed to acting on a medical finding concerning the stability of his eye condition. Stevenson v. Pramstaller, #07-cv-14040, 2009 U.S. Dist. Lexis 25495 (E.D. Mich.).
     Wheelchair-bound paraplegic prisoner failed to show that he was excluded from participation in the correctional department's "medical services" program because of his disability. The prisoner claimed that he received a "defective assistive device," a pressurized mattress that was five inches wider than his bed frame, causing him to fall and be injured while transferring to his wheelchair. This did not show discriminatory intent, as required for liability under the Americans with Disabilities Act, but, at most, negligence, which was insufficient for an ADA claim. Additionally, the ADA claim could only be brought against the agency, and not against individual officers. Ellis v. Hager, #C07-00665, 2009 U.S. Dist. Lexis 14835 (N.D. Ca.).
     While a prisoner claimed that he had been subjected to exclusion from good-time programs, including work programs, on the basis of disability discrimination, the record showed that the actual reason was that he was the subject of over 30 incident reports involving disciplinary infractions, fights with other prisoners, and harassment of prison staff members. A number of the incidents resulted in his placement in segregation, and he also, at times, was given access to a number of programs, but failed to complete them due to disciplinary problems or unsatisfactory performance. The prisoner also, at times, failed to attend medical appointments, or threatened staff members at them. Kogut v. Ashe, #08-30124, 2009 U.S. Dist. Lexis 20232 (D. Mass.).
     Prisoner presented genuine issues as to whether prison officials' alleged denial of crutches or a wheelchair, or of a handicap accessible shower, prevented him from taking a shower or participating in recreation for over two months, and whether crutches or a wheelchair were medically needed to ease his pain, prevent further damage, and shower. His claims for violations of disability discrimination statutes, however, were correctly rejected. Brown v. Lamanna, No. 08-6840, 2008 U.S. App. Lexis 26501 (4th Cir.).
     While a county jail inmate may not have a constitutional due process right to earn good-time credits, he could not be barred on the basis of disability, as he alleged, from correctional work programs that could earn such credits and reduce the length of his sentence. The prisoner stated a possibly viable claim for habeas relief under Title II of the Americans with Disabilities Act (ADA). Kogut v. Ashe, Civil Action No. 08-30124, 2008 U.S. Dist. Lexis 106114 (D. Mass.).
     Michigan state prison was not required, under state or federal law, to provide special education services to mentally ill and disabled inmates under the age of 27. Michigan Protection and Advocacy Service, Inc. v. Caruso, Case No. 5:05-CV-128, 2008 U.S. Dist. Lexis 80089 (W.D. Mich.).
     The Americans With Disabilities Act (ADA) does not waive the sovereign immunity of the U.S. government, so that a prisoner who is unable to speak or hear could not pursue ADA claims against the federal government or its employees. The prisoner also failed to exhaust available administrative remedies on his claim that he faced retaliation for his grievances concerning the inability of the prison phone system to provide Spanish translations, so that claim was also dismissed. Fellove v. Heady, Civil Action No. 3:05CV34, 208 U.S. Dist. Lexis 67586 (N.D.W.V.).
    The failure of the Savannah, Tenn. police to provide sign language interpreters for deaf arrestees, in the absence of intentional discrimination or claimed invalidity of the arrests, did not violate Title II of the Americans With Disabilities Act (ADA), which prohibits disability discrimination in the providing of a governmental "service, program, or activity." The ADA does not explicitly list arrests as within the definition of "service, program, or activity." Even if it is an activity, this does not, by itself, indicate that an interpreter was required. A plaintiff asserting such a claim must show that police failed to reasonably accommodate their disabilities in a manner that provided them with access to communications as effective as that made available to persons without disabilities, or that they were intentionally discriminated against. In the immediate case, there was no indication that providing a sign language interpreter would have resulted in a change of events. Tucker v. State of Tennessee, #06-6208, 539 F.3d 526, 2008 U.S. App. Lexis 18618 (6th Cir.), citing Rosen v. Montgomery Co., #96-1833, 121 F.3d 154, at 157-158 (4th Cir. 1997) and Bircoll v. Miami-Dade Co., #06-11098, 480 F.3d 1072 (11th Cir. 2007).
     Prisoner classified by Social Security as suffering from mental disorders failed to show that alleged delays in medical care for a leg injury was disability discrimination by correctional authorities. The Texas correctional authority was not responsible for his medical care, as independent contractors provided it. The prisoner also failed to show that the Texas Department of Criminal Justice failed to adequately maintain a basketball court where he may have suffered his leg injury, for the purpose of discriminating against disabled inmates, or that he was retaliated against by forcing him to use traffic paths that were difficult to use with crutches. Norman v. Tex. Dept. of Criminal Justice, No. 07-41090, 2008 U.S. App. Lexis 19914 (Unpub. 5th Cir.).
     A quadriplegic inmate confined to a wheelchair may have filed at least thirty prior frivolous cases against correctional officials but an injunction against him filing future lawsuits was overbroad in that it went beyond barring duplicative lawsuits concerning his conditions of confinement and did not uphold his right of access to the courts. His disability discrimination claim being asserted was at least arguable, when the prisoner had been moved in and out of various correctional facilities, so that his claim that he was not provided with adequate accommodation for his physical limitation and medical problems, that he was placed in a cell too small for his wheelchair to move, and that he was not provided with accessible toilets and catheters might be true of different locations. The dismissal of his lawsuit was therefore reversed. Miller v. Donald, No. 06-10536, 2008 U.S. App. Lexis 18611 (11th Cir.).
     Although a prisoner showed that one of his legs was shorter than the other, he failed to show that leg or knee problems interfered with his ability to perform major life activities, as required to constitute a disability for purposes of a disability discrimination claim. Claims for substandard medical care must be pursued under the Eighth Amendment, rather than under the federal disability discrimination statutes. Montez v. Owens, No. 92-N-870, 2008 U.S. Dist. Lexis 62815 (D. Co.).
     Federal appeals court upheld, in part, the dismissal of a lawsuit claiming that prison officials engaged in disability discrimination by holding a disciplinary hearing without providing a sign language interpreter. Claims, which, if successful, would imply the invalidity of the disciplinary conviction that caused a loss of good-time credits could not be pursued when the prisoner failed to show that the conviction had already been overturned. The prisoner could, however, on remand, pursue claims that concerned the conditions of his confinement and were independent of a challenge to his disciplinary conviction. Fresquez v. Moeroyk, No. 06-17273, 2008 U.S. App. Lexis 16772 (9th Cir.).
     The state of Pennsylvania was not entitled to Eleventh Amendment immunity against claims asserted by a deaf mother and her deaf son contending that their rights under the Americans with Disabilities Act (ADA), 42 U.S.C. Sec. 12131, and the Rehabilitation Act, 29 U.S.C. Sec. 794, were violated by the failure to provide them with a qualified sign language interpreter during their arrest or while they were incarcerated at a county prison. Congress abrogated any such immunity that the state might have in connection with these claims. Gonzales v. Pennsylvania, No. 07-2901, 2008 U.S. App. Lexis 13514 (Unpub. 3rd Cir.).
     When a prisoner's disability and its impact on his mobility were "obvious," any requirement that he provide correctional officials with "notice" of his disability was satisfied. The prisoner claimed both that he needed a cell with handicap accessibility features, and housing on a lower tier, and that the defendants failed to provide him with prescribed medications in a consistent manner. The court ruled that the prisoner, to show liability, did not have to prove that the state Department of Corrections engaged in intentional discrimination on the basis of his disability, but recovery of non-economic damages would depend on such a showing. Kiman v. N.H. Dept. of Correction, Civil No. 01-cv-134, 2008 U.S. Dist. Lexis 23456 (D.N.H.).
     Prisoner with AIDS adequately alleged that the defendants were deliberately indifferent to his serious medical needs by delaying him from seeing a doctor for months, not permitting him to take his AIDS medications because of his housing assignment, and failing to provide him with medical attention on an occasion that he passed blood, as well as denying him adequate food, which affected his health. The prisoner failed, however, to establish a viable claim under the Americans with Disabilities Act, since the mere fact that he had AIDS was inadequate standing alone, to show that he had a disability. Carter v. Taylor, Civ. No. 06-561, 2008 U.S. Dist. Lexis 25158 (D. Del.).
     While a county is not required to make all existing correctional facilities accessible to individuals with disabilities, it is required to provide access to programs for such individuals. Therefore, disabled prisoners should have similar access to that provided to other prisoners to any type of educational, vocational, rehabilitative, or recreational program, service, or activity offered, provided that the disabled prisoners, with or without reasonable accommodation of their disabilities, would otherwise meet the eligibility requirements to participate. In this case, the county failed to provide a justification for differences between recreational and vocational activities available at other facilities, and those available to detainees at its central jail, including disabled detainees. Further fact finding was therefore needed to determine the appropriate remedy in response to disability discrimination. The county was in violation of the Americans with Disabilities Act (ADA) both because of the differing programs and services available to disabled versus non-disabled prisoners, and because there were some physical barriers preventing the disabled from gaining access to certain facilities. The court also continued in force prior orders requiring that prisoners in administrative segregation be provided at least minimal access to both exercise and religious services. Pierce v. County of Orange, No. 05-55829, 2008 U.S. App. Lexis 6148 (9th Cir.).
     Sex offender's objection to the application of a mental health category to him without "due process of law" rejected, as no violation of any constitutionally protected liberty interest was involved, since the categorization did not concern a hospital placement. Classification as a sexual offender was justified by his past convictions of three counts of second-degree criminal sexual conduct and one count of first-degree criminal sexual conduct. Disability discrimination claims under the Americans with Disabilities Act (ADA), 42 U.S.C. Sec. 12131 et seq., and the Rehabilitation Act of 1973, 29 U.S.C. Sec. 794 were rejected because the definition of "disability" in those statutes specifically excludes "sexual behavior disorders." Rice v. Mich. Dept. of Corrections, No. 1:07-CV-578, 2007 U.S. Dist. Lexis 83792 (W.D. Mich).
     The Americans with Disabilities Act (ADA), 42 U.S.C. Secs. 12131-12165, does not provide for claims against government employees in their individual capacities. The defendant employees were therefore entitled to qualified immunity on the individual capacity claims a prisoner asserted against them under the ADA. Doyle v. Jones, No. 1:06-CV-628, 2007 U.S. Dist. Lexis 84570 (W.D. Mich.).
     The Americans with Disabilities Act (ADA) does not apply to the federal government, so that a prisoner could not pursue an ADA disability discrimination claim against the federal Bureau of Prisons for the alleged wrongful refusal to classify him as medically unable to work. The prisoner's claim concerning alleged deliberate indifference to his serious medical needs showed, at most, a disagreement with the medical treatment provided or an incorrect diagnosis of his condition by prisoner personnel, both of which would be inadequate to demonstrate a violation of his constitutional rights. The prisoner allegedly suffered from an inner ear disorder (Meniere's disease), and had also requested to be seen by an orthopedic specialist for problems with his neck, back, left hip, knee and ankle. .Marlin v. Alexandre, No. 06-30838, 2007 U.S. App. Lexis 26534 (5th Cir.).
     A prisoner with a hearing impairment could not recover damages for any alleged emotional injury he suffered from the failure of a Nebraska prison to provide him with visual alarms and assistive communication devices in the segregation unit he was housed in, because he did not assert any claim for physical injuries are required by 42 U.S.C. Sec. 1997e(e). His claims for damages against the State of Nebraska for disability discrimination were further barred by the Eleventh Amendment. The prisoner could, however, amend his complaint to seek injunctive or other equitable relief. If he did not do so, his lawsuit would be dismissed. Stainbrook v. Houston, No. 4:07CV3196, 2007 U.S. Dist. Lexis 81195 (D. Neb.).
     Federal appeals court rejects a claim by 17-year-old public school student convicted and incarcerated in Maryland who alleged that the District of Columbia violated an agreement to provide him with special education services in the Maryland prison, pursuant to the Individuals with Disabilities Education Act, 20 U.S.C. Sec. 1412(a). The Maryland prison allegedly did not allow access to the prisoner for the purposes of providing those services, and the appeals court found that the trial court acted erroneously in ruling that the agreement provided that the District would provide those promised special education services after the prisoner's release from custody if access to the Maryland prison could not be obtained. Maryland, instead, provided the plaintiff with its own special education services, and the plaintiff sought compensatory services from D.C. to make up for the time he spent in the Maryland prison without services from D.C., even though he received such services in prison from Maryland. The appeals court, overturning a decision by the trial court, ruled that the now released prisoner was not entitled to additional special education services from D.C. Hester v. DC, No. 06-7102, 2007 U.S. App. Lexis 24415 (D.C. Cir.).
     Prisoners seeking to assert claims under the Americans With Disabilities Act (ADA) and the Rehabilitation Act for alleged disability discrimination by prison officials (failure to accommodate and treat his mental illness) are required by The Prison Litigation Reform Act (PLRA) to exhaust available administrative remedies before proceeding with a lawsuit.  In this case, the prisoner failed to exhaust such remedies before filing his lawsuit, which must, therefore, be dismissed. The court also noted, however, that because the prisoner had, in the meantime, proceeded to exhaust those administrative remedies, he could now file a new lawsuit based on his claims if he wanted. O'Guinn v. Lovelock Corr. Ctr., No. 06-15972 2007 U.S. App. Lexis 21170 (9th Cir.).
     In a lawsuit over the death of an allegedly mentally ill pretrial detainee while in custody in a county jail, the plaintiff failed to show that the decedent had been discriminated against because of his alleged disability of mental illness or that there had been deliberate indifference to his serious medical needs. There was also no proof of an official policy or custom of depriving mentally ill detainees of needed medical treatment. The cause of the detainee's death was a previously undiagnosed physical ailment of  "peritonitis due to a perforated ulcer," and the prisoner's mental illness may have rendered meaningful communication with the medical personnel who treated him "almost impossible." In the absence of accurate information from the patient, the medical personnel were denied information that might have aided in their ability to timely diagnose the perforated ulcer. Winters v. Arkansas Dep't of Health & Human Servs., No. 06-2787 2007 U.S. App. Lexis 15486. (8th Cir.).
     Deaf prisoner with a limited ability to read and write English, who was also indigent, was unable to represent himself on his disability discrimination claims and should be provided with an appointed lawyer. The court, on its own motion, entered an order for the appointment of a lawyer, despite the prior denial of the prisoner's motion seeking one, finding that it was unfair and unrealistic to expect that the prisoner could have expressed in his written motion the legal factors or arguments required to show the need for an appointed lawyer. Williams v. Hayman, No. 06-3705, 2007 U.S. Dist. Lexis 41890 (D.N.J.).
     In a lawsuit arising out of the death of a county inmate who hung himself, the plaintiff failed to show that the actions of county employees violated the Americans with Disabilities Act (ADA), 42 U.S.C. Sec. 12101 et seq., since there was no showing that the decedent had been denied access to programs or services because of a disability. Claims for alleged medical malpractice under state law, and that the county had policies, practices, and procedures depriving the decedent of his Eighth Amendment rights, however, were viable on the basis of disputed facts concerning his treatment. Herman v. County of York, No. 1:05-CV-2501, 2007 U.S. Dist. Lexis 28824 (M.D. Pa.).
     Hearing impaired inmate did not show that his right to exercise his religion had been substantially burdened by prison regulations under which he was only allowed to possess ten audio cassettes of tape recorded church services, and permitted him to exchange two old tapes for two new ones when new ones were sent to him. Court also rejects his argument that he was subjected to disability discrimination by being denied possession of bi-aural headphones to enable him to watch his television, since he had no constitutional right to watch television. Sanders v. Ryan, No. CV 03-0523, 2007 U.S. Dist. Lexis 29070 (D. Ariz.).
     Paraplegic prisoner failed to show that he was subjected to cruel and unusual punishment because prison officials failed to provide him with an appropriate shower chair and shoes. The record showed that he was, in fact, provided with a shower chair, but not the specific type he argued was appropriate. The court also rejected the argument that the prisoner had been forced to use his wheelchair in the prison shower, finding that he had chosen to do so because of his belief that it was safer than the chair provided by the prison. Further, when he fell out of the chair once, that only resulted in minor scratches, which was insufficient to violate his rights. Foreman v. Bureau of Prisons, No. 06-1274, 2007 U.S. App. Lexis 879 (3rd Cir.). [N/R]
     Blind prisoner had no constitutional right to be placed in a cell with his son, who was also imprisoned on criminal charges arising from the same incident, despite his argument that he was dependent on his son for assistance. Quick v. Mann, No. 05-7102, 170 Fed. Appx. 588 (10th Cir. 2006). [N/R]
     Detainee in county jail presented a viable equal protection claim by alleging that the jail had a policy and practice of discrimination and that an officer there discriminated against him in his conditions of confinement because of his mental illness of bi-polar disorder. Glisson v. Sangamon County Sheriff's Department, No. 05-3250, 408 F. Supp. 2d 609 (C.D. Ill. 2006). [N/R]
     Mother of youthful incarcerated son with alleged disabilities, including emotional problems, and auditory and visual hallucinations, as well as other mental health concerns, could not pursue claims for money damages under the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. Sec. 1400 et seq. regarding educational services required to be provided to him, when she failed to show that she provided any educational expenses for her son. Court also rules that neither the Alabama Department of Youth Services (ADYS) nor its employees could be held liable for allegedly not providing the juvenile with services to which he was allegedly entitled under the Americans with Disabilities Ac (ADA), 42 U.S.C. Sec. 12112(a), as the Department and the individual defendants sued in their official capacities were entitled to Eleventh Amendment immunity, and the individuals could not be sued in their individual capacities under ADA. McReynolds v. Alabama Department of Youth Services, No. 2:04-CV-850, 426 F. Supp. 2d 1247 (M.D. Ala. 2006). [N/R]
     Court rejects deaf inmate's claim that he was subject to disability discrimination in violation of federal statutes and a consent decree because prison officials provided him with unqualified sign language interpreters. The consent decree allowed the use of inmate interpreters, and that is what the prisoner was provided with for educational and vocational programming offered. Additionally, the facility had staff interpreters who were available for both disciplinary hearings and medical appointments. The court found that the occasional use of inmate interpreters in emergency medical circumstances did not put the prisoner's safety or security at risk. DuQuin v. Dean, No. 99 Civ. 12458, 423 F. Supp. 2d 411 (S.D.N.Y. 2006). [N/R]
     Former prisoner suffering from Lou Gehrig's Disease presented sufficient evidence to create genuine issues as to whether prison officials engaged in disability discrimination against him by failing to adequately accommodate his needs. Claimed problems with his medical treatment, however, did not rise to the level of disability discrimination. Kiman v. New Hampshire Dep't of Corr., No. 05-1998, 2006 U.S. App. Lexis 16189 (1st Cir.). [2006 JB Aug]
     Update: federal appeals court, in light of recent Supreme Court decision allowing states and state agencies to be sued for damages for disability discrimination also violating constitutional rights, orders further proceedings on paraplegic inmate's disability discrimination damage claims. Miller v. King, No. 02-13348, 2006 U.S. App. Lexis 12109 (11th Cir.). [2006 JB Jul]
     U.S. Supreme Court rules that states and state agencies can be sued for damages for disability discrimination under the Americans with Disabilities Act (ADA) to the extent that a disabled prisoner asserts a claim for conduct that actually violates constitutional rights under the 14th Amendment. U.S. v. Georgia, No. 04-1203, 04-1236 126 S. Ct. 877 (2006). [2006 JB Mar]
     State correctional official sued in her official capacity was immune under the Eleventh Amendment from claims for money damages for alleged violation of the Americans with Disabilities Act (ADA), 42 U.S.C. Sec. 12132, but the State of Michigan waived any Eleventh Amendment immunity from disability discrimination damage claims under the Rehabilitation Act of 1973, 29 U.S.C. Sec. 794, when it accepted federal funds for its corrections department. Deaf inmate stated a possible claim for disability discrimination by alleging that he was denied access to a device which would let him communicate by telephone on a basis comparableto the telephone access given to hearing inmates. Tanney v. Boles, No. 04-71260, 400 F. Supp. 2d 1027 (E.D. Mich. 2005). [N/R]
     Doctor's alleged inadequate treatment of diabetic prisoner's fractured hip, if true, only amounted, at most, to negligence, and was insufficient to show either disability discrimination or a federal civil rights violation. Medical treatment decisions, a federal appeals court states, do not ordinarily fall within the scope of federal disability discrimination statutes. Fitzgerald v. Corrections Corporation of America, No. 03-5029, 403 F.2d 1134 (10th Cir. 2005). [2005 JB Dec]
     Detainee suffering from paranoid schizophrenia, acute psychosis, impulse-control disorder, and "polysubstance abuse" could not assert disability discrimination claims since his impairments, because they could be corrected "or mitigated" by medication, did not constitute disabilities. Jail personnel did not use excessive force in using pepper spray to subdue him when he actively resisted his transfer to a hospital for treatment, and did not violate his right to receive adequate medical attention. Atwell v. Hart County, Kentucky, No. 03-6421, 122 Fed. Appx. 215 (6th Cir. 2005). [2005 JB Dec]
     Prisoner failed to provide adequate evidence that he was denied access to prison grievance procedures on the basis of a disability. While he claimed that he was unable to write with his right hand, medical records merely showed him, at the time of the alleged deprivation, as having a weakened grip in his right hand, not an inability to write. Further, the grievance procedure allowed him to request assistance if he was unable to write for any reason, and there was no evidence that he ever requested any such assistance or ever requested a grievance form. Johnson v. Wackenhut Corrections Corporation, No. 04-6245, 130 Fed. Appx. 947 (10th Cir. 2005). [N/R]
     Prisoner with a gastrointestinal problem which substantially limited his eating was entitled to pursue both his Eighth Amendment and disability discrimination claims based on the failure of a prison classification committee to recommend his transfer to another facility with an acute care hospital despite orders from his doctor that he required such care. Appeals court also finds that there were genuine issues of material fact as to whether the prison failed to adequately accommodate the prisoner's eating disability, barring summary judgment on claims for money damages under the Americans with Disabilities Act (ADA), 42 U.S.C. Sec. 12101 et seq. Scott v. Garcia, No. CIV. 00-1849, 370 F. Supp. 2d 1056 (S.D. Cal. 2005). [N/R]
    Blind inmate's disability discrimination damage claims against the State of New Jersey, which did not involve a denial of access to the courts, but rather denial of talking books, a talking watch, and a walking cane, were barred by the Eleventh Amendment. Cochran v. Pinchak, No. 02-1047, 401 F.3d 184 (3d Cir. 2005). [2005 JB Jun]
     California prisoner complied with the requirement that he exhaust available administrative remedies by filing provided form describing his alleged disability of visual impairment and the accommodations he requested. His failure to identify specific prison employees as allegedly responsible for his grievances did not alter the result when the form supplied by the state did not ask for particular individuals to be named. Butler v. Adams, No. 04-15478, 2005 U.S. App. Lexis 1898 (9th Cir. 2005) [2005 JB Apr]
     Warden was not entitled to summary judgment in lawsuit alleging that he was deliberately indifferent to paraplegic prisoner's medical needs and "inhumane housing conditions," or on disability discrimination claims seeking injunctive relief. Disability discrimination claims seeking money damages rejected. Miller v. King, No. 02-13348, 384 F.3d 1248 (11th Cir. 2004) [2004 JB Dec]
     Prisoner was required under 42 U.S.C. Sec. 1997e(a) of the Prison Litigation Reform Act to exhaust available administrative remedies before pursuing disability discrimination claim under Americans with Disabilities Act, 42 U.S.C. Sec. 12101 et seq., against correctional officials for their alleged failure to treat his attention deficit hyperactivity disorder (ADHD). Chamberlain v. Overton, 326 F. Supp. 2d 811 (E.D. Mich. 2004). [N/R]
     Federal trial court reinstates prisoner's disability discrimination case against prison officials under the Americans with Disabilities Act (ADA), 42 U.S.C. Sec. 12101 et seq. claiming that his rights were violated when he was denied the services of an aide to take him to the law library, school, recreation and the barbershop. The prisoner uses a wheelchair because of severe osteoarthritis in his hips, and the trial court originally dismissed the ADA claim on the basis of them being barred by sovereign immunity under the Eleventh Amendment because his claim was against state officials. The claim was reinstated on the basis of Tennessee v. Lane, #02-1667, 124 S. Ct. 1978 (2004), finding that Congress expressed its intent to abrogate Eleventh Amendment immunity unequivocally when it wrote the ADA and that it had the power to enact at least that portion of it that applies to cases implicating the fundamental right of access to the courts. Flakes v. Frank, 322 F. Supp. 2d 981 (W.D. Wis. 2004). [N/R]
     Prison officials were not deliberately indifferent to insulin dependent prisoner's need for a proper diet in prescribing a "self-monitored" diabetic diet in which the prisoner was responsible for choosing the proper food, and he was given counseling and education on how to do so. Additionally, substitutes for certain foods for diabetic inmates were made available. Court also rules that the Americans with Disabilities Act (ADA), 42 U.S.C. Sec. 12132, and Rehabilitation Act, 29 U.S.C. Sec. 794, and their prohibition on "disability discrimination" did not give the inmate a general federal cause of action for challenging the medical care provided for his insulin dependent diabetes. These statutes provide a basis for challenging discriminatory treatment or denial of benefits on the basis of a disability, and do not provide a basis for challenging the medical treatment of underlying disabilities. Carrion v. Wilkinson, 309 F. Supp. 2d 1007 (N.D. Ohio 2004). [N/R]
     U.S. Supreme Court rules that states may be sued for damages under the Americans with Disabilities Act (ADA) for acts of disability discrimination which allegedly interfere with the constitutional right of access to the courts, and that such claims are not barred by Eleventh Amendment immunity. Court does not provide a clear answer about whether similar lawsuits against governmental employees for damages are proper in other circumstances of alleged disability discrimination in the providing of public services or programs. Tennessee v. Lane, #02-1667, 124 S. Ct. 1978 (2004). [2004 JB Jul]
     Prison officials' alleged refusal to treat inmate's hepatitis B and C by medicating him with interferon did not constitute deliberate indifference to his serious medical needs and was not disability discrimination in violation of the Americans with Disabilities Act (ADA), 42 U.S.C. Sec. 12101 et seq. Evidence was insufficient to show that the plaintiff's hepatitis was severe enough to require such "extraordinary" treatment under generally accepted medical standards, and prisoner failed to show that he was denied the requested treatment solely because of his disability of mental illness. Davidson v. Texas Dept. of Crim. Justice, #03-41185, 91 Fed. Appx. 963 (5th Cir. 2004). [N/R]
     Statute of limitations on prisoner's disability discrimination claim based on his dismissal from prison job was tolled (extended) under Pennsylvania state law during the time that a prison official delayed filling out an administrative complaint form, even though the delay was not intentional, but merely negligent. Limitations period was also extended during the time that the prisoner pursued the exhaustion of his available administrative remedies as required by 42 U.S.C. Sec. 1997e(a). Howard v. Mendez, 304 F. Supp. 2d 632 (M.D. Pa. 2004). [N/R]
    The U.S. Department of Justice entered into a settlement agreement with the Maryland Department of Juvenile Services regarding the provision of services required by the Americans with Disabilities Act to juveniles with hearing disabilities. [N/R]
     Prisoner failed to adequately show that he was discriminated against on the basis of disability when prison officials denied him use of a computer and took his calculator away. An affidavit by an individual stating that he had a learning disability was insufficient to show that he was disabled, and evidence showed that he was denied the use of the computer only after being disciplined for inappropriate conduct. Additionally, calculator was removed on the basis of a possible security risk. Damron v. North Dakota Com'r of Corrections, 299 F. Supp. 2d 970 (D.N.D. 2004). [N/R]
     Prisoner's heart condition of Prinzmetal's angina did not constitute a "disability" under the Americans with Disabilities Act, ADA, 42 U.S.C. Sec. 12101 et seq. since it did not normally limit his capacity to work. Denial of prisoner's request to transfer to prison work camp, which would allow him to earn reductions in his sentence at a faster rate, based on camp's inability to provide him with adequate medical care for his condition, did not constitute disability discrimination. Charbonneau v. Gorczyk, No. 01-312, 838 A.2d 117 (Vt. 2003). [N/R]
     Refusal to allow a wheelchair bound prisoner to present live witness testimony from inmates during a disciplinary hearing violated his due process rights. Prisoner had a protected liberty interest based on combination of his physical disability and his confinement for two months in administrative segregation in a housing unit which was not designed to accommodate disabled prisoners, and where he was denied access to his wheelchair. Serrano v. Frances, No. 01-57036, 345 F.3d 1071 (9th Cir. 2003).[2004 JB Feb]
     Prisoner with an unstable right shoulder stated a viable claim for disability discrimination by contending that correctional personnel knew of medical instructions that he should not be handcuffed behind his back, but ignored them, refusing to accommodate his injury by cuffing him with his hands in front. Bane v. Virginia Department of Corrections, 267 F. Supp. 2d 514 (W.D. Va. 2003). [2003 JB Dec]
     Illinois court rules that sovereign immunity barred a paraplegic inmate's claim seeking damages against prison warden for alleged disability discrimination under Americans with Disabilities Act (ADA), 42 U.S.C. Sec. 12132. State did not consent to be sued by prisoners based on ADA violations, and Congress had not abrogated the state's immunity under the statute. Evans v. Page, No. 5-02-0126, 792 N.E.2d 805 (Ill. App. 5th Dist. 2003). [N/R]
     Mentally ill county jail inmates could not pursue their claims for disability discrimination against the county and county officials for alleged degrading treatment. They failed to show that they were denied the benefits of any services, program or activity of the jail, or that violent and self-destructive inmates who were mentally ill were treated any differently than violent and self-destructive inmates not suffering from a mental illness. Atkins v. County of Orange, 251 F. Supp. 2d 1225 (S.D.N.Y. 2003). [2003 JB Aug]
     Despite the prisoner having a medical condition that required him to only be assigned to a lower bunk, prison officials did not engage in disability discrimination by disciplining him for his disobedience to a housing order when the evidence showed that he refused his new cell assignment not on the basis of his alleged disability, but because he refused to be celled with a black inmate. Prisoner's broad claim that the housing of inmates of different races together could cause a "prison riot" was insufficient to show that prison officials were "deliberately indifferent" to his safety. Hoover v. Keating, No. 02-5136, 59 Fed. Appx 288 (10th Cir. 2003). [N/R]
     Attorneys' fee award limitations contained in Prison Litigation Reform Act did not apply to a fee award to prevailing plaintiff prisoners under the attorneys' fee sections of the Americans with Disabilities Act (ADA) and Rehabilitation Act. Prevailing plaintiffs in disability discrimination lawsuit against California correctional officials were also entitled to fees for work their lawyers did in separate litigation defending a judgment on a similar issue from another federal appeals court on review before the U.S. Supreme Court. Armstrong v. Davis, #01-15779, 318 F.3d 965 (9th Cir. 2003). [2003 JB May]
     County jail inmate failed to state a claim for disability discrimination under the Americans with Disabilities Act (ADA), 42 U.S.C. Sec. 12131 et seq. when she did not specify which programs, activities, services, or benefits she was allegedly denied on the basis of her disability. Smith v. Franklin County, 227 F. Supp. 2d 667 (E.D. Ky. 2002). [N/R]
    Prisoner's lawsuit against state officials for disability discrimination under the Americans With Disabilities Act (ADA), 42 U.S.C. Secs. 12131-12134 and 42 U.S.C. Sec. 1983 failed to state a claim when it merely asserted in a conclusory manner that he had been subjected to unconstitutional conditions of confinement and deprived of his federal rights, without any specifics of how this was so or how any of the named defendants were personally responsible for any such deprivations. Frazier v. Michigan, #02-1160, 41 Fed. Appx. 762 (6th Cir. 2002). [N/R]
     Prisoner was not subjected to disability discrimination by allegedly being denied a job assignment and participation in the prison's educational program because of his migraine headaches. Prisoner failed to show that he was disabled as that term is used in either the Americans With Disabilities Act (ADA), 42 U.S.C. Sec. 12101 or the Rehabilitation Act., 29 U.S.C. Sec. 701. Court also holds that ADA and Rehabilitation Act claims could not be pursued under 42 U.S.C. Sec. 1983. Battle v. Minnesota Dept. of Corrections, #02-1599, 40 Fed. Appx. 308 (8th Cir. 2002). [N/R]
     U.S. Supreme Court rules that punitive damages may not be awarded in private lawsuits under provisions of the Americans With Disabilities Act (ADA) and Rehabilitation Act prohibiting disability discrimination by public entities or the recipients of federal funding. Decision overturns $1.2 million award against city for failure to provide wheelchair restraints in a vehicle in which a wheelchair-bound detainee was transported and injured. Barnes v. Gorman, #01-682, 122 S. Ct. 2097 (2002). [2002 JB Aug]
    In disability discrimination claim against correctional defendants by prisoner suffering from diabetes and heart condition, prisoner was not required to exhaust administrative remedies to pursue a claim under Title II of the Americans With Disabilities Act (ADA), 42 U.S.C. Sec. 12112(a)(2) covering access to governmental programs, but government officials were not subject to individual liability under this section of the statute. Further, injunctive and declaratory relief were inappropriate when prisoner had been transferred from facility, so there was no longer an ongoing controversy over his alleged denial of participation in work and educational programs. Mitchell v. Massachusetts Department of Correction, 190 F. Supp. 2d 204 (D. Mass. 2002). [N/R]
    California prisoners could pursue claim against state parole authority that it violated federal disability discrimination law to have an "unwritten policy" of automatically denying parole to prisoners with a history of drug abuse problems. Thompson v. Davis, #01-15091, 282 F.3d 780 (9th Cir. 2002). [2002 JB Jun]
     Federal appeals court rules that Congress did not properly abrogate states' Eleventh Amendment immunity from suit in enacting disability discrimination statutes concerning public services. Eleventh Amendment immunity barred mentally ill prisoners' class action lawsuit against Louisiana state correctional department for purported violations of the Americans With Disabilities Act (ADA) and Rehabilitation Act. Reickenbacker v. Foster, #00-31121, 274 F.3d 974 (5th Cir. 2001). [2002 JB May]
     Hearing-impaired detainee could pursue his disability discrimination complaint against warden of pretrial detainment facility and county court system for failing to provide an interpreter and other services to accommodate his disability. County court system could not assert Eleventh Amendment immunity during its ongoing merger with the state system. Chisolm v. McManimon, #00-1865, 275 F.3d 315 (3d Cir. 2001). [2002 JB May]
     Prison superintendent and deputy superintendent did not act with deliberate indifference to disabled (wheelchair confined) inmate's serious medical needs when the deputy approved recommendations for his transfer to another facility where his medical concerns could be better addressed and superintendent promptly responded to inmate's requests by asking medical personnel to make an assessment. Navedo v. Maloney, 172 F. Supp. 2d 276 (D. Mass. 2001). [N/R]
     The availability of relief for alleged disability discrimination against wheelchair bound inmate under the Americans With Disabilities Act, 42 U.S.C. Sec. 12132 and the Rehabilitation Act of 1973, 29 U.S.C. Sec. 701 did not bar his claim for damages against individual prison officials under 42 U.S.C. Sec. 1983, despite the fact that the claims involved the same facts of denial of access to handicapped shower facilities. Becker v. Oregon, 170 F. Supp. 2d 1061 (D. Or. 2001). [N/R]
     Burden on disabled plaintiff, wheelchair confined, of transferring location of trial of his federal civil rights lawsuit to a location more convenient for correctional defendants outweighed the inconvenience to defendants of holding the proceedings in the courthouse where the plaintiff originally filed it. The trial court therefore denied a change of venue in the plaintiff's lawsuit over his medical treatment while incarcerated. Nikac v. Pozzi, 172 F. Supp. 2d 414 (S.D.N.Y. 2001). [N/R]
     U.S. Supreme Court to rule on the issue of whether punitive damages may be awarded against a municipality in a lawsuit for damages brought under Section 504 of the Rehabilitation Act or Section 202 of the Americans With Disabilities Act. Barnes v. Gorman, #01-682, cert. granted, 122 S. Ct. 864 (2002). [2002 JB Mar]
     States could not be sued in federal court for money damages under the Americans With Disabilities Act, but that state prison officials, in their official capacities, are not immune from liability under the Rehabilitation Act of 1973, another federal law prohibiting disability discrimination, when they accepted federal funds. Key v. Grayson, No. CIV. 96-40166, 163 F. Supp. 2d 697 (E.D. Mich. 2001). [2002 JB Feb]
     Paraplegic prisoner could pursue claim against prison warden for failure to provide him with wheelchair-accessible transportation to and from court hearings and with a wheelchair-accessible scale to allow medical personnel to accurately weigh him. Claims concerning denial of access to library, exercise, and recreational facilities, however, were properly dismissed as lacking specific factual allegations. Evans v. Page, No. 5-99-0216, 755 N.E.2d 105 (Ill. App. 2001). [2002 JB Jan]
     Jury properly awarded $1.034 million in compensatory damages to wheelchair-bound arrestee injured while being transported in van that was not equipped with wheelchair restraints; appeals court rejects trial court's setting aside of jury's punitive damages award of $1.2 million, however, ruling that punitive damages are available in disability discrimination cases for denial of public services. Gorman v. Easley, #00-1029, 257 F.3d 738 (8th Cir. 2001). [2002 JB Jan]
     298:147 Prisoner with impaired hearing could pursue injunctive remedies against state Department of Corrections under federal Americans With Disabilities Act (ADA) on claim that it should have provided a sign-language interpreter during disciplinary hearings and administration of medical care. Randolph v. Rodgers, No. 00-1897, 253 F.3d 342 (8th Cir. 2001).
     296:124 State prison ban on smoking, sale of tobacco products, and possession of tobacco by inmates did not violate inmate's equal protection rights or constitute "disability discrimination" against smokers; federal court dismisses lawsuit as frivolous. Brashear v. Simms, 138 F. Supp. 2d 693 (D. Md. 2001).
     295:109 Prisoners claiming that excessive exposure to second hand tobacco smoke constituted deliberate indifference to their existing medical conditions and disability discrimination have to provide individual proof; correctional officials who took some steps to restrict smoking were entitled to qualified immunity from damages for allegedly exposing prisoners to a risk of future harm. McIntyre v. Robinson, 126 F. Supp. 2d 394 (D. Md. 2000).
     292:54 Federal appeals court orders "further consideration" when trial judge's opinion granting summary judgment on a wide variety of disability discrimination and other complaints by a wheelchair-bound prisoner was so "sparse" as to fail to really provide reasons for the decision. Beckford v. Portuondo, No. 00-0111, 234 F.3d 128 (2nd Cir. 2000).
     292:54 Correctional officials did not act with deliberate indifference towards prisoner with a missing leg when they promptly arranged for him to obtain a prosthesis and offered him housing on the same floor as the mess hall (which he declined). Parkinson v. Goord, 116 F. Supp. 2d 390 (W.D.N.Y. 2000).
     [N/R] Provisions of the Prison Litigation Reform Act prohibiting the recovery of mental and emotional distress
     damages without a prior showing of physical injury barred blind inmate's mental and emotional injuries for disability discrimination. Cassidy v. Indiana Dept. of Corrections, No. 99-2674, 199 F.3d 374 (7th Cir. 2000).
     286:149 Federal appeals court rules that lawsuits against a state under Title II of the Americans With Disabilities Act (ADA), prohibiting disability discrimination by any public entity, including claims for injunctive relief, could not be pursued in federal court because of Eleventh Amendment immunity. Walker v. Snyder, No. 98-3308, 213 F.3d 344 (7th Cir. 2000).
     287:165 Prisoner's alleged "stage fright," making it difficult for him to produce a urine sample for drug testing while being observed, was not a disability for purposes of the Americans With Disabilities Act (ADA); court also finds that discipline of prisoner for various misconduct charges was not retaliatory. Oyague v. State of New York, #98 Civ. 6721 (TPG), 2000 U.S. Dist. LEXIS 12426 (S.D.N.Y.).
     278:20 Barring a prisoner from prison's cooking classes because he would not submit to HIV testing did not constitute disability discrimination. Murdock v. Washington, #98-2419, 193 F.3d 510 (7th Cir. 1999).
     278:24 New Jersey reaches wide-ranging $16 million settlement in lawsuit over allegedly inadequate treatment of mentally-ill prisoners and disability discrimination against them; plaintiffs' attorneys to receive $1.22 million in attorneys' fees; disciplinary policies to take prisoners' mental illness into account; all new prisoners to receive mental health assessment within 72 hours. D.M. v. Terhune, 67 F. Supp. 2d 401 (D.N.J. 1999).
     278:26 Department's action of purchasing patrol wagons without safety nets and using them to transport detainees did not constitute deliberate indifference to a substantial risk of serious harm; no federal civil rights liability for injuries detainee suffered when thrown about by vehicle motions after being placed in wagon with his hands cuffed behind his back. Spencer v. Knapheide Truck Equipment Co., #98-3717, 183 F.3d 902 (8th Cir. 1999).
     286:150 Failure to provide double amputee with a wheelchair during his incarceration in a county jail did not violate the Eighth Amendment since jail corridors were too narrow for wheelchair access and there were legitimate security concerns about the presence of a wheelchair in the general population; prisoner did, however, state possible claims for violation of the Eighth Amendment and disability discrimination statutes based on alleged "deliberate indifference" to his serious medical needs. Schmidt v. Odell, 64 F. Supp. 2d 1014 (D. Kan. 1999).
     273:131 U.S. Supreme Court, in three decisions, narrowly interprets federal disability discrimination statute; plaintiff employees whose disabilities may be corrected by medication or devices such as eyeglasses will generally not be disabled persons entitled to protection against employment discrimination. Murphy v. United Parcel Service, Inc., #97- 1992, 119 S. Ct. 2133 (1999); Sutton v. United Air Lines, Inc., #97-1943, 119 S. Ct. 2139 (1999); Albertsons, Inc. v. Kirkingburg, #98-591, 119 S. Ct. 2162 (1999).
     275:163 Federal appeals court upholds constitutionality of application of ADA and Rehabilitation Act to state prisons, finds that Justice Department regulations implementing these laws were proper, and rules that state could not assert Eleventh Amendment sovereign immunity as a defense to a federal disability discrimination lawsuit by prisoners. Amos v. Maryland Dept. of Public Safety & Correctional Services, #96-7091, 178 F.3d 212 (4th Cir. 1999).
     260:115 Unanimous U.S. Supreme Court rules that the Americans With Disabilities Act (ADA) applies to state prisons, based on "unambiguous" text of statute; Court does not address question of whether applying ADA to state prisons was a constitutional exercise of authority by Congress; ruling expected to result in more ADA lawsuits by prisoners. Penn. Dept. of Corrections v. Yeskey, No. 97-634, 118 S.Ct. 1952 (1998).
     » » Editor's Note:
     * In Armstrong v. Wilson, 124 F.3d 1019 (9th Cir. 1997), a federal appeals court upheld a trial court's injunctive order that California officials develop a plan for compliance with the ADA and the Rehabilitation Act of 1973 in the state prison system.
     * In Love v. Westville Correctional Center, 103 F.3d 558 (7th Cir. 1996), the appeals court upheld an award of $30,948 in damages under the ADA to a quadriplegic inmate who claimed he was denied access to prison recreational, work, educational, and rehabilitative programs because of his disability; the prisoner was also awarded $39,536.75 in attorneys' fees.
     * In Duffy v. Riveland, 98 F.3d 447 (9th Cir. 1996), the court found that a prisoner could sue correctional officials under the ADA for alleged failure to provide him with a qualified sign language interpreter for disciplinary and classification hearings.
     * In Crawford v. Indiana Dept. of Corrections, 115 F.3d 481 (7th Cir. 1997), the court ruled that a blind inmate could pursue his claim under the ADA that he was excluded from prison educational programs and denied access to the library and dining hall because of his disability.
     * In an ADA suit brought in state court, the judge refused to dismiss a suit, brought by a paraplegic inmate against a sheriff and others, for transporting him in a van that was not wheelchair accessible. Davis v. Mak, 1997 WL 133410 (Conn. Super. 1997).
     266:20 Two wheelchair-bound paraplegic inmates placed in solitary confinement, where they were unable to reach their food trays or use the toilet for thirty-two hours were properly awarded $2,000 each for cruel and unusual punishment. Simmons v. Cook, #97-2324, 154 F.3d 805 (8th Cir. 1998).
     266:20 Disabled prisoner's complaint that he was unable to bathe for over two months while in lockdown stated claim for cruel and unusual punishment. Bradley v. Puckett, #98-60102, 157 F.3d 1022 (5th Cir. 1998).
     267:36 Pretrial detainee with a leg cast and crutches stated claim for violation of his Eighth Amendment constitutional rights based on assertion that county jail failed to provide him with accessible shower facilities or assistance in the shower. Frost v. Agnos, #94-15640 & # 96-17332, 152 F.3d 1124 (9th Cir. 1998).
     268:62 Correctional facility which disclosed prisoner's positive hepatitis C test results to work-release employer, resulting in end of prisoner's work assignment, did not engaged in disability employment discrimination under Iowa law, since it was not the prisoner's employer. Zepeda v. Fort Des Moines Men's Corr. Fac., 586 N.W.2d 364 (Iowa 1998).
     269:68 Difficulties that wheelchair-confined detainee experienced during his two days of confinement in jail did not amount to deliberate indifference to his serious needs. Tesch v. Co. of Green Lake, #97-3930, 157 F.3d 465 (7th Cir. 1998).
     261:131 Deaf arrestee, denied access to Telecommunication Device for the Deaf (TDD) to make phone call for bail money, stated claims under Americans With Disabilities Act (ADA) and Rehabilitation Act for disability discrimination; suit claimed that failure to provide access resulted in delay in release of arrestee. Hanson v. Sangamon Co. Sheriff's Dept., 991 F.Supp. 1059 (C.D. Ill. 1998).
     263:164 Asymptomatic HIV infection qualifies as a disability for purposes of the Americans With Disabilities Act (ADA). Bragdon v. Abbott, #97-156, 118 S.Ct. 2196 (1998).
     254:19 Federal appeals court rules that Americans With Disabilities Act and Rehabilitation Act apply to state prisons; upholds trial court's injunctive order that California officials develop plan for compliance with the statutes in state prison system. Armstrong v. Wilson, 124 F.3d 1019 (9th Cir. 1997).
     256:53 Federal appeals court rules that Americans With Disabilities Act applies to state prisons and that disabled prisoners can be "qualified" individuals for participation in prison program; reinstates disability discrimination claim by prisoner excluded from "boot camp" program because of history of hypertension. Yeskey v. Com. of Pa. Dept. of Corrections, 118 F.3d 168 (3rd Cir. 1997).
     [N/R] Disabled prisoner brought lawsuit seeking total ban on prison smoking; trial court denies injunction, but orders further proceedings on issue of whether state had a duty to supply wheelchair accessible vans to transport disabled inmates. Candelaria v. Greifinger, 1997 U.S. Dist. Lexis 4616 (N.D.N.Y.) and 1997 U.S. Dist. Lexis 4617 (N.D.N.Y.). See also Candelaria v. Greifinger, 1997 U.S. Dist. Lexis 16146 (N.D.N.Y.), denying a motion by another disabled inmate to intervene in the case.
     251:164 Prisoner in infirmary cell was not entitled, under the Americans With Disabilities Act, to his own personal cable television hookup there; federal appeals court overturns trial court order that prisoner be given such hookup because he frequently lost channel selection disputes with other infirmary inmates in communal television watching room. Aswegan v. Bruhl, 113 F.3d 109 (8th Cir. 1997), rehearing denied, 1997 U.S. App. Lexis 15092 (June 18, 1997).
     248:126 Hearing impaired inmate was not "similarly situated" to other inmates for purposes of using a standard telephone, federal appeals court rules, so that failure to provide him with a special telephone adapted for his disability was not a violation of equal protection of law. Hansen v. Rimel, 104 F.3d 189 (8th Cir. 1997).
     249:132 Federal appeals court rules that Americans With Disabilities Act is applicable to disability discrimination claim by prisoner against state correctional facility; blind inmate can pursue his claim that he was excluded from prison educational programs and denied access to library and dining hall because of disability. Crawford v. Indiana Dept. of Corrections, 115 F.3d 481, 1997 U.S. App. Lexis 12673 (7th Cir. June 2, 1997). » Editor's Note: In Love v. Westville Correctional Center, 103 F.3d 558 (7th Cir. 1996), it upheld a $31,000 award under the Americans With Disabilities Act to a quadriplegic inmate who claimed he was subjected to disability discrimination, but it did not squarely rule on the issue of whether the ADA applied to prisons, since the defendant in that case did not pursue the issue. Other federal appeals courts that have addressed the issue have split on whether the ADA applies to the prison setting. See White v. Colorado, 82 F.3d 364 (10th Cir. 1996) (neither the ADA nor the Rehabilitation Act applies to prison employment), Torcasio v. Murray, 57 F.3d 1340 (4th Cir. 1995), cert. denied, 116 S.Ct. 772 (1996) (ADA's applicability to prisons is not clearly established, and strongly hinting that it is inapplicable), and Duffy v. Riveland, 98 F.3d 447 (9th Cir. 1996) (both ADA and Rehabilitation Act applicable to prisons).
     241:3 Americans With Disabilities Act did not provide a remedy for what amounted to an allegation of medical malpractice by a paraplegic prisoner; trial court improperly granted summary judgment to defendant prison officials on Eighth Amendment claim, however, when unrepresented inmate was not warned of consequences of failure to present evidence of his own in opposition to evidence officials presented in support of motion for summary judgment. Bryant v. Madigan, 84 F.3d 246, rehearing denied 91 F.3d 994 (7th Cir. 1996).
     [N/R] Damage award of $25,000 to quadriplegic former inmate overturned; state had responsibility to provide reasonable medical care but not a duty to develop an individual treatment plan for prisoner's disabling condition. State of Maryland v. Johnson, 670 A.2d 1612 (Md. App. 1996).
     [N/R] Americans With Disabilities Act and Rehabilitation Act applied to state correctional facilities; genuine issues of fact were present as to whether correctional nurses failed to provide bilateral amputee parole violator in county jail with materials needed to maintain the stumps of his amputated legs in a condition that would accept prosthetic devices. Kaufman v. Carter, 952 F.Supp. 520 (W.D. Mich. 1996).
     229:5 Update: Federal appeals court rules that it is not clearly established that Rehabilitation Act and Americans With Disabilities Act apply to state prisoners and finds prison officials entitled to qualified immunity on allegations that they failed to reasonably accommodate alleged disability of morbidly obese prisoner. Torcasio v. Murray, 57 F.3d 1340 (4th Cir. 1995), cert. denied, 116 S.Ct. 772 (1996).
     243:36 California federal trial judge, in class action disability discrimination lawsuit brought on behalf of disabled prison inmates, rules that Americans With Disabilities Act (ADA) applies to prisoners; compliance cost estimated at over $50 million; appeal anticipated. Armstrong v. Wilson, 942 F.Supp. 1252, (N.D. Cal. 1996). » Editor's Note: For court decisions rejecting the application of the ADA to prison circumstances, see Little v. Lycoming Co., 912 F.Supp. 809 (M.D. Pa. 1996), 5 AD Cases (BNA) 1359, 1996 U.S. Dist. Lexis 1757; Staples v. Va. Dept. of Corrections, 904 F.Supp. 487, 5 AD Cases (BNA) 1349, 1995 U.S. Dist. Lexis 19970 (E.D. Va.); White v. Colorado, 82 F.3d 364, 5 AD Cases (BNA) 1 631, 1996 U.S. App. Lexis 9281 (10th Cir); Lancaster v. Monroe Co. Alabama, 5 AD Cases (BNA) 1307 (S.D. Ala 1996); and Pierce v. King, 918 F.Supp. 932 (E.D.N.C. 1996) (ADA did not create a cause of action for state inmates displeased with prison work assignments). In Torcasio v. Murray, 57 F.3d 1340 (4th Cir. 1995), cert. denied, 116 S.Ct. 772 (1996), the court did not rule on whether the ADA and Rehabilitation Act apply to state prisons, but strongly intimated that they do not, ruling that, for purposes of qualified immunity, it was not clearly established that they do apply.
     A prior California federal trial court decision, Bullock v. Gomez, 929 F.Supp. 1299 (C.D. Cal. 1996) also held that the ADA and Rehabilitation Act apply to state correctional facilities, in a case in which an HIV-positive inmate and his spouse claimed that refusal to allow overnight visits violated both statutes, and the court declined to grant the defendants summary judgment. Also see Niece v. Fitzner, 922 F.Supp. 1208 (E.D. Mich. 1996), in which the applicability of the ADA to claims by a prisoner and his deaf fiance was evidently not questioned by the defendants and in which the court ruled that the prisoner had standing under the ADA to assert his claim that he was discriminated against in the provision of telephone services based on his association with his deaf fiance. In Inmates of the Allegheny Co. Jail v. Wecht, 93 F.3d 1124 (3rd Cir. 1996) 1996 U.S. App. Lexis 21555, vacated and rehearing en banc granted, 1996 U.S. App. Lexis 24921 (3rd Cir.) the court ruled that the language of both the Rehabilitation Act and of the ADA clearly indicates that they cover all aspects of state and local government, including correctional facilities. This decision was cited in the court's ruling in Armstrong v. Wilson, reported above, but was vacated on September 20, 1996, the same date that Armstrong was decided, after the full 3rd Circuit Court of Appeals granted a rehearing en banc.
     246:83 Federal trial court rules that Americans With Disabilities Act and Rehabilitation Act, federal statutes prohibiting disability discrimination, apply to state prisons; further holds that Congress abrogated states' Eleventh Amendment immunity from suit in federal court in enacting these statutes. Niece v. Fitzner, 941 F.Supp. 1497 (E.D. Mich. 1996).
     247:102 Prisoner could sue correctional officials for alleged failure to provide him with qualified sign language interpreter for disciplinary and classification hearings; federal appeals court rules, however, that formal certification of interpreter was not required, as a matter of law, under federal disability discrimination law. Duffy v. Riveland, 98 F.3d 447, 1996 U.S. App. Lexis 26529 (9th Cir. 1996).
     248:116 Federal appeals court upholds award of $30,948 in damages under the Americans With Disabilities Act to quadriplegic inmate denied access to prison recreational, work, educational, and rehabilitative programs because of his disability; prisoner also awarded $39,536.75 in attorneys' fees. Love v. Westville Correctional Center, 103 F.3d 558 (7th Cir. 1996).
     237:133 Prison's failure to establish formal Braille program for blind inmates did not violate their rights under the Americans With Disabilities Act; trial court did not abuse its discretion in failing to appoint counsel for blind inmate in disability discrimination lawsuit. Smith v. Ohio Department of Rehab. & Corr., 661 N.E.2d 771 (Ohio App. 1995). [Cross- reference: Access to Courts/Legal Info].
     219:36 Four hundred and sixty pound prisoner stated claim for cruel and unusual punishment based on inadequacy of toilet facilities for his weight and size; court rules that federal disability discrimination statutes apply to state prisoners and that prisoner stated several other viable claims for such discrimination. Torcasio v. Murray, 862 F.Supp. 1482 (E.D.Va. 1994).
     225:131 Sheriff and sheriff's assistant were entitled to qualified immunity in suit alleging that they were deliberately indifferent to needs of obese disabled prisoner in 1988. Parsons v. Wright, 649 A.2d 1108 (Me. 1994).
     225:131 Prison officials were entitled to qualified immunity in blind prisoner's disability discrimination lawsuit alleging that they denied him equal access to vocational training programs because of his blindness when he neither applied for existing programs nor requested accommodation in them. Lue v. Moore, 43 F.3d 1203 (8th Cir. 1994).
     Jail officials were not entitled to qualified immunity in suit broght by wheelchair confined inmate for failure to reasonably accomodate his disability; federal court rules that inmate need not exhaust administrative remedies before filing suit under Americans With Disabilities Act. Noland v. Wheatley, 835 F.Supp. 476 (N.D. Ind. 1993).
     Wheelchair-bound inmates' equal protection rights were not violated by prison officials refusal to install cable- television in their cells, even if other inmates had been allowed in-cell cable. More v. Farrier, 984 F.2d 269 (8th Cir. 1993).
     Jail officials were not entitled to qualified immunity in suit brought by wheelchair confined inmate for failure to reasonably accommodate his disability; federal court rules that inmate need not exhaust administrative remedies before filing suit under Americans with Disabilities Act. Noland v. Wheatley, 835 F.Supp. 476 (N.D. Ind. 1993).
     Deaf, mute and vision impaired inmate had constitutional right to qualified sign language interpreter during disciplinary procedure. Bonner v. Arizona Dept. of Corrections, 714 F.Supp. 420 (D. Ariz. 1989).
     Federal appeals court orders hearing on whether prison's failure to provide deaf inmate with sign language interpreter violated federal law. Bonner v. Lewis, 857 F.2d 559 (9th Cir. 1988).

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